(The Return of) Ignatz, by Sam Heldman

Thursday, July 25, 2002

More Eleventh Circuit cases from 7/24/02 Utility Automation 2000 v. Choctawhatchee Elec. Coop. is about the always-perilous Rule 68, offers of judgment. The defendant made the too-common mistake of not being clear enough, in its offer of judgment, that it wasn't offering to pay any attorneys' fees beyond the amount of "costs" mentioned in its offer. So, the plaintiff snaps up the offer, and then seeks fees on top of it. Plaintiff wins; defendant is sad; defendant's lawyer is really really sad. Read this so you won't be sad, if you're ever thinking of making an offer of judgment.

Calhoun v. Southern Baptist Convention affirms summary judgment against the plaintiff in a copyright infringement case. Though the compositions were practically identical, the Eleventh Circuit says that there is undisputed evidence that this was "independent creation" -- that is, essentially, just a coincidence. I'd be troubled by this ruling, but for the fact that I think that this ruling was crucially dependent on the complete lack of evidence of "access" (i.e, there was no showing that the second songwriter could or would have heard the plaintiff's song). Judge Birch, who knows a lot about this area of law, concurs with some thoughts about laches.

McCorvey v. Baxter Healthcare involved a catheter balloon that burst inside the plaintiff. The Circuit affirms the District Court's decision to strike the affidavit of plaintiff's engineering expert -- Daubert, discretion, gatekeeping, and all that -- but nonetheless reverses summary judgment, holding that under Florida law the plaintiff was entitled to a rebuttable presumption of product-defect on these facts.

Itani v. Ashcroft affirms an order of deportation.

posted by sam 2:35 PM 0 comments


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